RAM KUMAR DAS v. JAGADISH CHANDRA DEB DHABAL DEB AND ANOTHER
Citation: [1952] 1 S.C.R. 269; 1951 INSC 53
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 53. Supreme Court of India judgment dated 1951-11-26. RAM KUMAR DAS v. JAGADISH CHANDRA DEB DHABAL DEB AND ANOTHER. Read the judgment and case...
Judgment text
S. C. R. SUPREME COURT REPORTS 269 Kulasekara's claim was rightly negatived in the courts below arrd that of Rajaya was rightly decreed. In the result all these appeals fail and are dismissed with costs. Appeals dismissed. Agent for the appellant in Ci. vii Appeals Nos. 28 & 29 of 1949, respondent No. 1 in Civil Appeals Nos. 30, 32 & 33 of 1949 and respondent No. 2 in Civil Ap- peal No. 31 of 1949 and for Respondent No. 3 in Civil Appeal No. 31 of 1949 : M. S. K. Sastri. Agent for the appellant in Civil Appeals Nos. 31 to 33 of 1949, respondent No. 1 in Civil Appeals Nos. 28, 29 of 1949 and respondent No. 2 in Civil Appeal No. 30 of 1949 : M. S. K. Aiyangar. Agent for the appellant in Civil Appeals Nos. 30, 89, and 90 of 1949, respondent No. 1 in Civil Appeal No. 31 of 1949 and respondent No. 2 in Civil Appeals Nos. 28, 29, 32 & 33 of 1949: S. Subrahmanyam. Agent for the respondents Nos. 1 and 2 in Civil Ap- peals Nos. 89 and 90 of 1949: V. P. K. Natr! biyar.
RAM KUMAR DAS ti, JAGADISH CHANDRA DEB DHABAL DEB AND ANOTHER. [PATANJALI SAsTRI C. J. , MuKHERJEA, DAs and VMAN BosE JJ. ] Transfer of Property Act (IV of 1882), ss. 106, 107-Duration of lease-Presumption-Kabuliyat for 10 years-Payment of annual rent for two years only-Kabuliyat inoperative-Nature of posses- sion after the two years-Whether adverse, as tenant from year to year, or as monthly tenant-Applicability of s. 106 to implied tcnan· cies-Prcsumption from payment of annual rent. The rule of construction embodied in s. 106 of the Transfer of Property Act applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances, 1951 Chinnathayi alias Veeralakshmi v. Kulasekara Pandiya Naicker and Another. 1951 Nov.
26 270 SUPREME COURT REPORTS f1952] 1951 The contract to the contrary contemplated by the said 5ection need not be an express contract ; it 1nay be implied, but it should Ram Kumar Das be a valid contract. If the contract is invalid the section will T.. regulate the duration of the lease. fagdish Chandra \. Vhen the rent reserved is an annual rent, a preiumption Deb Dhabal Deb would arise that the tenancy was an annual tenancy unless there and Another. is something to rebut this presumption. But under s. 107 of the Transfer of Property Act a tenancy from year to year or reserv- ing an yearly rent can be made only by a registered instrument. The defendant executed a registered bbuliyat to the Receiver who was n1anaging an estate pending a suit, purporting to take a plot of land on lease for a period of ten years at a rental of Rs. 46 per annum and paid the first year'. i rent of Rs. 46 on the 8th March, 1925, and the next year's rent on the 16th March, 1926.
No further rent was paid by the defendant to the Receiver or to the propri~tor after that date. The proprietor, treating the defendant as a monthly tenai;it served notice to quit on him on the 18th July, 1942, asking the latter to vacate on the 7th August, 1942, and instituted a suit for ajectment in July, 1943. The kabuliyat was found to be inoperative in law and the. defendant contended that the payment and acceptance of annual 'rent in 1925 and 1926 did not create a monthly tenancy but two tenancies for one year each for two successive years, that the relation of landlord and tenant came to an end on the exipration of th'C second annual lease, and, as there was no holding over, the suit was t. ime-barred : Held (i) that from the facts a tenancy could be presumed to have come into existence from 1924 ; (ii) as the purpose of the tenancy was for building structures on the land, under sec.
106 ()f the Transfer of Property Act the tenancy must be presumed to be one from month to month in the absence of a contract to the contrary ; (iii) a contract that the tenancy was for one year certain could not be inferred in the present case from the fact that an a'nnual rent was paid in 1925 and 1926, inasmuch as the kabuliyat, though inoperative in law, showed that the parties never intended to create a lease for one year; {iv) on the facts of the case it was quite proper to hold that the tenancy was one from month to month since its inception in 1924 and the suit was not time~barred. Debendra Nath v. Shyama Prasanna (11 C. W. N. 1124) and Sheikh Akloo v. Emaman (I. L. R. 44 Cal. 403) approved. Aziz Ahmad v. Alauddin Ahmad (A. LR. 1933 Pat. 485), Md. Moosa v. faganand (20 LC. 715) and Matilal v. Darieeling Muni· cipality (17 C. L. J. 167) rderred to. CIVIL APPELLATE JUR1smcTJoN : Civil Appeal No. 114 of 1950.
Appeal from a judgment and decree of the High Court of Patna (Shearer and Reuben JJ. ) dated 5th November, 1948, in Appeal No. 2064 of 1946, _. . ~ . "' . • • I • i S. C. R. SUPREME COURT REPORTS which arose out of a decree of the District Purulia in Title Appeal No. 116 of 1945. are stated fully in the judgment. 271 Judge of The facts M. C. Setalvad, Attorney-General for India, (Nandlal Untwalia, with him) for the appellant B. C. De (lyotirmoy Chose, with him) for the res-, pondent. 1951. November 26. The Judgment of the Court was delivered by MuKHERJEA J. -This appeal is on behalf of the defendant and it arises out of a suin commenced by the plaintiff respondent, in the Court of the Subor- dinate Judge at Chaibassa, for recovery of possession of the land described in schedule to the plaint, on the allegation that the defendant was a monthly tenant in respect of the same, and that the tenancy was determined by a notice to quit.
The suit was decreed ' by the trial court and the decision was affirmed, on appeal, by the District Judge, Purulia, and on Second Appeal, by a Division Bench of the High Court of Patna. The defendant has now come up to this court on the strength of a certificate granted under section 110, Civil Procedure Code. Mr. Setalvad, appearing on behalf of the defendant- appellant, stated to us at the outset that he would not dispute the validity or sufficiency of the notice to quit served upon his client, if on the facts of this case he is held to be a monthly tenant under the plaintiff in respect of the premises in suit. His contention, in substance, is that the defendant was at no point of time a monthly tenant under the plaintiff or his pre- cleeessor. There might have been, according to the learned Counsel, two tenancies for one year each for two successive periods, but on the expiry of the second yearly lease, which happened on 7th December.
1926, the defendant ceased to be a tenant and no fresh tenancy was created by holding over as is contemplated· by section 116 of the Transfer of Property Act. As there was no holding over, there could not be any ques- tion of a monthly tenancy being brought into existence 3-4 S. C. lndia/71 1951 Ram Kum,,, Dai· v. /agdish Chandra Deo Dhabal Deb and Ant~lher. 1951 Ram Kumar Das . 'v. /aztlish Chandra Dea Dhabal Deb 1mtl Another. Mulcheriea /. 272 SUPREME COURT REPORTS [1952] under the provision of section 116 of the Transfer of Property Act, and the present suit of the plaintiff hav- ing been admittedly brought more than 12 years after the determination of the second yearly lease, is barred by limitation under Article 139 of the Indian Limita- tion Act. The whole controversy in this appeal thus centres round the point as to whether the defendant was in fact a monthly tenant under the plaintiff at the .. \ ... - . - , .... ' . >. S. C. R.
SUPREME COURT REPORTS 275 the Prodhan's Patta did not create any rights m the defendant and that the Kabuliyat of 1924 was also ineffectual as a lease to give the defendant any tenancy right. The learned Judges further held that the defendant did not acquire any permanent right in the land by prescription or otherwise and that by reason of the payment of rent to the Receiver in the years 1925 and 1926 he became a tenant from month to month. In these circumstances the High Court con- curred with the District Judge m holding that the notice to quit was insufficient for the purpose of determining the tenancy. It seems that the defendant made a strenuous endeavour before the High Court to establish that as the Patta of 1913 as well as the Kabuliyat of 1924 were both invalid and inoperative, he was never a tenant in respect of the land in suit and no tenancy could be created by the two payments of rent, inasmuch as the Receiver had no authority to receive them.
It was contended, therefore, that the plaintiff was in possession of the land as a trespasser all along and thus acquired a good tide by adverse pos- session. The High Court, though it held definitely that the defendant was a tenant from month to month, nevertheless . kept open the question as to whether the payment of rent to the Receiver was tantamount to payment to the plaintiff. It was held that as the notice to quit was . S. C. R. SUPREME COURT REPORTS 277 that by payment and acceptance of rent a new tenancy was created de hors the Kabuliyat, and as the new tenancy was for building purposes, it was a 1951 Ram Kumar DllS · 1'. fagdish. Ch111Zdr11 Deo Dhabal DeJ and AfWtlter. tenancy from month to month under section 106, Transfer of Property Act, terminable by fifteen days' notke. As the notice was proper and sufficient, the trial judge decreed the plaintiff's suit. Against this judgment, the defendant took an appeal to the court Mu-'! (. herjn. J.
of the District Judge, Purulia, and the District Judge dismissed the appeal and affirmed the judgment of the trial court. It appears that two points were raised by- the defendant before the District Judge in support of his appeal : one was that the Kabuliyat of 1924 was effective as a lease and consequently the defendant could not be ejected in contravention of the terms thereof. At the same time it was contended that there was no tenancy at all held by the defendant under the plaintiff, inasmuch as the payments made to the Ree::eiver could not be regarded as payments to the plaintiff. The first point, the District Judge pointed out, was contrary to the express decisions of the Patna High Court, while the second was contradictory to· the defendant's own admission in the written state- ment. The defendant then came up in Second Appeal before the High Court of Patna and the appeal was heard by a Division Bench, consisting of Shearer and Reuben JJ.
The learned Judges agreed in dismissing the appeal and affirming the decree made by ~he courts below, but the grounds upon which they based their decision are not identical. As regards the nature of the tenancy created by implication of· law in consequence of the Receiver having accepted payment ot rent from the defendant, it was held by Reuben J. that when the Receiver accepted rent in 1925, it should be presumed that the parties intended to creat a tenancy for one vear and when he accepted rent again in 1926, such acc~ptance amounted to his a~senting to the defendant's holding over; and in view of the purpose for which the tenancy was created, the defendant from that time became a tenant from --; \ - I, 278 SUPREME COURT REPORTS [1952] ' 1961 month to month under the provision of section 116, - Transfer of Property Act. · Shearer, J . , felt diffi- Ram Ku=• 0 "' culty in accepting this view though in his opinion Jagdish vClvmdm if a periodic tenancy was created at all, it was from o.
,, ohaw o,bmonth to monthand not from year to year. There are ' and Anoth . S. C. R. SUPREME COURT REPORTS 279 Mr. De, appearing for the plaintiff-respondent, has, on the other hand, contended that the tenancy that was created by payment and acceptance of rent in the year 1925 was from the beginning a tenancy from month to month under the provision of section 106. Transfer of Property Act. Alternatively, he has argued that if a tenancy for one year only was created m the year 1925, then after the expiration of that one year's lease the defendant held over and the Receiver's assent to his continuing in posse&sion is evidenced by acceptance of rent from him in the year 1926. The tenancy thus created would be a tenancy from month to month under section 116, Transfer of Property Act.
Lastly, it is argued that even if two successive tenancies were created for one year each, the facts admitted and proved would go to show that the tenant held over after the second annual lease and consequently a tenancy from month to month came into existence in accordance with the provision of section 116, Transfer of Property Act, even though no rent was demanded by the landlord after 1926. The controversy between the parties so far as this appeal 1s concerned, therefore, narrows down to the following three points :- ( 1) What was the nature of the tenancy created by acceptance of rent by the Receiver from the defend- ant on the 8th of March, 1925 ? If it wa. ~ a tenancy from month to month, it is not disputed on behalf of the defendant tliat on question of holding over would at all arise and the plaintiff would be entitled to succeed.
(2) If in 1925 a tenancy was created for one year, can the landlord's assent to the defendant's continuing • in possession be inferred from the fact that rent was accepted from the defendant in March, 1926 ? (3) If the payment and acceptance of rent in March, 1926, brought into existence a tenancy for another year, was there any subsequent tenancy created after the second year, although there was no demand or acceptance of rent by the landlord --..... since then ? 1951 Ram Kumar Das v. fagdish Chandra Deo Dhabal Deb and Another. Mu"k_herjea /. I, ----------- ........ ' \ 280 SUPREME COURT REPO~TS [ 1952) 1951 . So far as the first point- is concerned, the courts - below have proceeded on the view- that a registered Ram Ku=r Da• instrument signed by the landlord was necessary to v. create a valid lease for ten years .. _That view was not Jagdi•hhac;:;;":i";. questioned before us and we express no opinion on this ~JAnoeher. ' point.
Proceeding, therefore, on the assumption that even though the parties might have intended to create JtukherieaJ. _ a lease for IO years, no operative lease came into existence, the only. facts admitted are that the defend. ant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff's estate, and paid rent to the latter. From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the present case?
Section 106 of the Transfer of Property Act lays down: ·" In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, _on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other pur- pose shall be deemed to be a lease from month to. month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy. " · The section lays down a rule of construction which is to be applied when there is no period agreed upon _between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created.
The rule of con- struction embodied in this section applies not only to~ express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural parposes. The object was to enable the lessee to build structures upon tqe lanq. In these circumstances, it could ]? ~ -- . r _r ' . - >. - -..... S. C. R. SUPREME COURT REPORTS 281 regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between the parties was certainly not to create a monthly tenancy.
It is not disputed that the contract to the contrary, as contemplated by section 106 of the Transfer of Property Act, need not oe an express contract ; it may be implied, but it cer- tainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is ex- pressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Con- sequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in section 107 of the Transfer of Property Act(1).
The Kabuliyat in the case before us is undoubtedly a regis- tered instrument, but ex concessis it is not an opera- tive document at all and cannot consequently fulfil the requirements of section 107 of the Transfer of Pro. perty Act. This position in fact is not seriously controverted lJy Mr. Setalvad ; but what be argues is that a lease for on. e year certain might fairly be inferred from the payment of annual rent, and a stipulation like that would not come within the mischief of section 107 of the Transfer of Property Act. His contention is that the payment of an annual rent, as was made in the present case, is totally inconsistent with a monthly lease. We are not unmindful of the fact that in (1) Vi de Debendra Nath v. SyamaPrasanna, l l C. W. N. 1124, 1'126. 1951 Ram KumtW D111 v. /agdish Chantbrz D~ Dhahal DH> aml Anotlit:f'. 1951 Ram Kumar Das v. fagdfrh Chandra Deo Dhabal Deb •nii Another. 282 SUPREME COURT REPORTS [1952] certain reported cases, such inference has been drawn.
One such case has been referred to by Mr. Justice. Reuben in ills judgment('), where reliance was placed upon an earlier decision of the Calcutta High Court( 2 ). A similar view seems to have been taken also in Mati- lal v. Darjeeling Municipality( 3 ). . · But one serious objection to th. is view seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended. to be for a period exceeding one year, but as the inten- tion was not expressed in the proper legal. form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all ; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case.
It would be pertinent to point out in this connec- tion that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendant's tenancy was one from month to month under section 106, T~ansfer of Property Act, and the only question left open was whether payment to tire Receiver amounted to payment to the plaintiff himself. In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment to and· acceptance of rent by the Receiver, the defendant became a monthly tenant under section 106, Transfer of Property Act. In ms appeal .
before the District Judge, which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the decision of (! ) Aziz Ahmadv. A/auddin Ahmad, A. I. R. 1933 Pat. 485. (2) Md. Moosav. Jaganurtd20I. e. 1. 15, (3) 17 C. L. J. 167. - - - . I~ t . S. C. R. SUPREME COURT REPORTS 283 the Judicial Committee which . set aside his appoint- ment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one year's rent was paid, a tenancy for one year was brought into existence. We think, therefore, that on th~ facts of this case it would be quite proper to hold that the tenancy of the defend- ant was one from month to month since its inception in 1924.
This view finds support from a number of reported cases(1), and in all these cases the rent pay- able was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour. The appeal thus fails and is dismissed with costs. Appeal dismissed. Agent for the appellant : R. C. Prasad. Agent for the respondents : S. P. Varma. (1) Vide Dehendra Nath v. Syama Prasanna, 11 C. W. N. 1124; Sheikli · Akloo v. Emaman, I. L. R. 44 Cal. 403. . l9Sl Ram Kumar Das v. fagdish Chandra Deo Dhabal Deb and Another. Mufcherjer. i J.
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